Decision #09/09 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (WCB) in January 2008 for injuries to both elbows which she related to the repetitive nature of her job duties. The claim for compensation was denied by primary adjudication as it was unable to establish a relationship between her work place duties and the diagnosis of bilateral epicondylitis. The decision was confirmed by Review Office on June 10, 2008. The decision was appealed by the worker through her union representative and a hearing was held on November 20, 2008 to consider the matter.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Decision: Unanimous
Background
On January 23, 2008 the worker was seated at a computer doing “return to sender” mail when she began to experience pain in both elbows, radiating down both arms and up the left arm. She filed a claim with the WCB and reported that she had been experiencing symptoms over the preceding few months while at work, although she noted that generally the pain would subside.
The worker had been in her position for one year, performing essentially the same job duties up to the onset of her symptoms. One of her duties was to handle “return to sender” mail. This involved grasping a bundle of mail from a tub with her right hand and placing it on a small shelf in front of her. She would type the postal code of an individual letter on a keyboard with her right hand. She would then take the letter in her left hand, rotate her arm so that the palm faced upward and place the letter under an automatic labeler which would affix a return to sender label to the envelope. The envelope was then placed into another tub on her left hand side. The worker did this job for approximately one to two hours daily and could handle from 1000 to 2000 letters per day. This job duty involved some repetition but did not involve force or wrist flexion or extension. The balance of her day was spent providing customer service, scanning mail, sorting and arranging mail into piles or sections and organizing and arranging mail so it would be right side up.
The worker’s elbows were examined by a physician on January 24, 2008, who diagnosed medial epicondylitis on the left side greater than right. The treating physiotherapist diagnosed chronic bilateral tendonopathy on January 25, 2008.
The worker reported to her case manager on February 15, 2008 that she had prior elbow difficulties for which she had submitted claims with the WCB. She advised that she was last treated for this condition in June 2007 and that while she did not think she had recovered 100%, she had been doing “pretty good”. A review of the worker’s file confirms that she has an extensive history of problems with both elbows and forearms dating back to 1996. Claims for right epicondylitis in 1996, a strain to the left forearm musculature in 1997, right and left medial and lateral epicondylitis in 2004, bilateral lateral and medial epicondylitis in 2005 and bilateral epicondylitis in 2007 were all accepted by the WCB as compensable injuries.
On February 22, 2008, the worker was advised that her claim for compensation was denied as the WCB was unable to establish a relationship between her work duties and the diagnoses of bilateral epicondylitis.
On April 14, 2008, a union representative asked Review Office to overturn the above decision and accept responsibility for the worker’s lost time retroactive to January 24, 2008. The union representative argued that on a balance of probabilities it was reasonable to conclude that the worker’s injuries arose in the course of her employment. He noted that the worker was performing a number of repetitive or highly repetitive duties, some against light force and some against greater force, which taken alone or in combination are capable of causing chronic epicondylitis. Furthermore, the worker had described the increase in pain in her elbows occurring during the course of her workplace duties and was not involved in any sports or other activities outside of work which could be identified as a cause of epicondylitis.
The case was considered on June 10, 2008 by Review Office which included a submission from the employer’s representative dated May 21, 2008 and a rebuttal submission by the union representative received at the WCB on May 30, 2008.
Review Office confirmed the adjudicator’s decision that the claim was not acceptable. Review Office agreed that the worker’s job duties were repetitive but determined that there was not significant force involved in the worker’s daily duties such that it could conclude that her bilateral epicondylitis arose out of the workplace. Review Office noted that the worker lifted mail bags so little during the day that it was not relevant to her bilateral elbow condition. It specifically noted that the worker’s “return to sender” duties did not place stress on the worker’s elbows and was not the culprit regarding the causation of her condition.
On June 10, 2008, the worker appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged. The worker attended the appeal with a union representative. The employer’s workplace safety and health officer attended and made a submission on behalf of the employer.
Reasons
The worker is employed by a federal government agency or department and her claim is therefore adjudicated under the Government Employees Compensation Act (“GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”
Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”).
The key issue before the Panel was whether the worker suffered an injury by accident which arose out of and in the course of her employment. For her appeal to be successful we must therefore reach the conclusion that her bilateral elbow condition was causally related to her workplace duties. We did reach this conclusion.
The Review Office decision denying the worker’s claim was premised on the conclusion that the worker’s duties did not place sufficient stress on the worker’s elbows to cause the worker’s bilateral epicondylitis. In arriving at that conclusion, Review Office did not, in our view, place sufficient weight on the worker’s extensive history of workplace related injuries to her elbows and forearms. As noted by a WCB Physical Medicine & Rehabilitation Consultant in a report dated February 28, 2006:
There is a lengthy history of symptomatic complaints beginning in the right upper extremity which appeared to be of the lateral epicondyle and some of the soft tissues of the forearm. Initial claim in 1996 symptoms described initially as intermittent. There has been intermittent periods of symptomatic complaints of the upper extremities progressing to bilaterally. Also some complaints of symptoms in the wrist, shoulders, and more recently increase (sic) symptoms on the right side with the current claim suggesting primarily medial epicondylitis present and soft tissue symptoms complained of in the forearm. The claimant returned to work with the one (sic) particular job duties felt to be aggravating eliminated. From her prior work duties, she was in receipt of therapy including physiotherapy and chiropractic treatments. There was no report of significant benefit to any specific treatment and report of progressing symptoms on return to work…The file review and the physical examination was suggestive of a long standing likely epicondylosis or additional findings of current examination of what appeared to be an ulnar neuropathy of the elbow with the recent testing being negative.
Prior to her 2008 claim the worker had most recently suffered a flare-up of bilateral epicondylitis in February 2007. She sought treatment including physiotherapy through until June 2007, and reported to her case manager that she did not believe that she had 100% recovered from that injury. Within a relatively short time frame thereafter, she was again experiencing symptoms, which culminated in the January 2008 claim.
Since her initial compensable injury in 1996 there has been a steady reduction in the worker’s job duties following each subsequent claim, yet she continues to experience symptoms upon her return to work. The worker’s extensive history and the medical evidence demonstrate a long standing chronic condition of bilateral epicondylitis, from which she appears never to have fully recovered.
In all of the circumstances we find on a balance of probabilities, that the worker’s bilateral epicondylitis injury is causally related to her workplace duties, and that her claim for compensation is acceptable. The appeal is therefore allowed.
Panel Members
K. Dangerfield, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
K. Dangerfield - Presiding Officer
Signed at Winnipeg this 15th day of January, 2009